R v Roberts

Case [2016] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROBERTS

[2016] SASCFC 41

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

19 April 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BREACH AND REVOCATION

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY

On 17 August 2012, the appellant was sentenced by a Judge of the District Court for one count of aggravated robbery and one count of attempted aggravated robbery to a term of imprisonment of four years, five months and 28 days with a non-parole period of two years.  The sentence was reduced from a starting point of imprisonment for seven years to five years to take account of the appellant’s guilty plea.  The sentence was further reduced to four years, three months and 11 days to take account of eight months and 19 days already served in custody on remand. When the offences were committed, the appellant was on parole for earlier offending.  As a result, the total of his sentences was increased by two months and 17 days representing the unexpired balance of that parole period.

On 29 September 2014, the appellant was released on parole.  This was two years, one month and 12 days from the date of sentence and two years and 10 months from his return to custody.  The appellant’s parole conditions included conditions to abstain from illicit drugs and to submit to urine testing. 

On 25 February 2015, the appellant provided a urine sample that tested positive for methylamphetamine.  On 4 March 2015, the appellant’s parole was cancelled and he was returned to custody.  On 8 December 2015, a new non-parole period was set by the Judge of 16 months in relation to the outstanding sentence of one year, 11 months and 16 days.  The commencement of the non-parole period was backdated to 4 March 2015. 

The sole ground of appeal was that the non-parole period fixed by the sentencing Judge was manifestly excessive. 

Held (per the Court):

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [14]).

2. The principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence, apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) Criminal Law (Sentencing) Act 1988 (SA) after cancellation of a prisoner’s parole, as a result of a breach of parole. The additional factor is that, in fixing a new…

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R v Roberts [2016] SASCFC 41
Case
[2016] SASCFC 41
Decision Date

CaseChat Overview and Summary

The appeal concerned Jake Roberts, the appellant, who sought to have a new non-parole period fixed after his parole was cancelled due to a breach of its conditions. The original sentence was imposed by the District Court for aggravated robbery and attempted aggravated robbery, with a non-parole period of two years. Following his release on parole, Roberts provided a urine sample that tested positive for methylamphetamine, leading to the cancellation of his parole and his return to custody.

The central legal issue before the court was the principles applicable to fixing a new non-parole period for a prisoner whose parole has been revoked due to a breach of a condition. Specifically, the court had to determine how the seriousness of the breach, the offender's prospects of rehabilitation, and the need for deterrence should be weighed in this determination. The court also considered whether the sentencing judge had erred in fixing the new non-parole period at 16 months.

The court reasoned that while a breach of parole typically warrants closer attention to the seriousness of the breach and may adversely affect prospects of rehabilitation, these are factors to be weighed in the sentencing discretion. The court noted that the appellant's breach, a relapse into drug use, was a foreseeable setback given his history of drug addiction. Crucially, the breach did not involve further criminal conduct, and the appellant was actively seeking treatment for his addiction. The court found that the 16-month non-parole period was excessive and did not adequately reflect these mitigating circumstances.

Allowing the appeal, the court set aside the 16-month non-parole period. A new non-parole period of 13 months and 15 days was fixed, commencing from the date of the parole cancellation.

Orders

Orders of the court

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Background

Background to the litigation

The appeal requires consideration of the principles applicable to fixing a non-parole period for a term of imprisonment following cancellation of the prisoner’s parole as a result of a breach of a condition of parole.Background In order to understand the issues on the appeal, it is necessary to set out the background to the appellant’s sentence. On 17 August 2012, the appellant was sentenced by a Judge of the District Court for one count of aggravated robbery and one count of attempted aggravated robbery. The appellant was sentenced to imprisonment for four years, five months and 28 days with a non-parole period of two years. The sentence was reduced from a starting point of imprisonment for seven years to five years to take account of the appellant’s guilty plea. The sentence was further reduced to four years, three months and 11 days to take account of eight months and 19 days already served in custody on remand. When the offences were committed, the appellant was on parole for earlier offending. As a result, the total of his sentence was increased by two months and 17 days representing the unexpired balance of that parole period. This resulted in total head sentences of imprisonment for four years, five months and 28 days with a non-parole period of two years, both to commence from the date of sentence. On 29 September 2014, the appellant was released on parole. This was two years, one month and 12 days from the date of sentence and two years and 10 months from his return to custody. The appellant’s parole conditions included conditions to abstain from illicit drugs and to submit to urine testing. On 25 February 2015, the appellant provided a urine sample that tested positive for methylamphetamine. On 4 March 2015, the appellant’s parole was cancelled and he was returned to custody.[1] At this time the appellant had one year, 11 months and 16 days of parole outstanding. [1] Pursuant to s 74(1) and (1b) of the Correctional Services Act 1982 (SA). On 2 November 2015, the appellant applied to the District Court for a new non-parole period to be set pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). On 8 December 2015, a new non-parole period was set by the Judge of 16 months in relation to the outstanding sentence of one year, 11 months and 16 days, the non-parole period to be treated as having commenced on 4 March 2015. Sentencing remarks In fixing the new non-parole period, the Judge said:Jake Roberts, you applied to this court to have a non-parole period fixed referable to the outstanding balance of the sentence you were serving after you breached your parole. I set out the background.On 17 August 2012 you were sentenced by his Honour Judge Smith, then of this court, for offending of aggravated robbery and aggravated attempted robbery. Those offences were committed on 29 November 2011. On the day of that offending you were on parole. You had been released from custody where you were serving a sentence for a number of Magistrates Court offences.On 14 December 2009 in the Adelaide Magistrates Court you had been sentenced to 27 months imprisonment with a non-parole period of six months to date from 16 November 2009. You were apparently released on parole on 20 May 2010.You breached that parole 18 months later by committing these serious robbery offences. There was a balance outstanding of some two months on your parole from the Magistrates Court offence. His Honour Judge Smith ordered you to serve the two months, 17 days and then he added to that the five year sentence he imposed for the two robbery offences, one the aggravated robbery and the other the attempted aggravated robbery.His Honour took into account time that you had spent in custody. The effective head sentence he imposed was four years, five months, 28 days with a non-parole period of two years to start from 17 August 2012. This time you were released on parole on 29 September 2014. However, five months later you returned a positive sample to methylamphetamine, that was on 25 February this year. Your parole was cancelled on 4 March this year. Have you been in custody ever since.You are 28. You have a reasonably lengthy antecedent history, mostly for offences of dishonesty. It seems you were addicted to heroin and would commit offences of dishonesty to support your habit. When you were first released on parole in 2010 you took steps to get off drugs. You were given permission by your parole officer to go to Odyssey House in Victoria, that is a residential drug rehabilitation centre. However, that unfortunately did not prevent you committing the robbery.In the second release on parole you also relapsed into drug use. While in custody you have been on the methadone program. You have been exploring drug rehabilitation programs that might be available to you upon your next release. You also have an alcohol problem.I will fix a new non-parole period for you but it will not be the low proportion of the head sentence that his Honour Judge Smith was able to impose. In relation to the outstanding sentence of one year, 11 months and 16 days I fix a non-parole period of 16 months. I backdate that to 4 March 2015.Approach on appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

A non-parole period of that length is more than enough to reflect the minimum time justice requires the appellant must serve having regard to all the circumstances of the breach of his parole conditions and the necessity for deterrence, both specific and general, the protection of the public and the requirements of punishment.Conclusion We allow the appeal. We set aside the non-parole period of 16 months. We fix a non-parole period of 13 months and 15 days commencing on 4 March 2015.

Ratio Decidendi

Legal Principle Established

As was observed by Kourakis J in Foley v Police,[27] in R v Wilson[28] the offender breached parole by breaching a designated condition. In those circumstances, it was understandable that particular attention needed to be given to the seriousness of the breach. The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion. This is consistent with the approach Stanley J took in R v Earley.[29][27] [2008] SASC 338 at [24] and [26].[28] [1999] 203 LSJS 459.[29] [2014] SASC 202.Consideration In this case the appellant was serving a sentence of imprisonment for serious offences that had their genesis in an underlying drug addiction. The Judge who imposed the original sentence of imprisonment of four years, five months and 28 days fixed a non-parole period of two years. If the Judge had back-dated the sentence instead of reducing it by eight months and 19 days for time in custody, the total head sentence would have been five years together with two months and 17 days for the earlier unexpired parole. The non-parole period would have been two years, eight months and 19 days, being 52 per cent of the head sentences. The appellant was released on parole on 29 September 2014 after serving two years and 10 months from the time he was taken into custody. The appellant was on parole for four months and 26 days before he breached the condition of his parole that he abstain from using illicit drugs. The Director submits that this breach of the parole conditions is serious because it represented a lapse into drug taking. That is significant in this context because there is a clear nexus between the appellant’s past drug use and serious criminal conduct by him to support that drug taking. In these circumstances, there is no error by the sentencing Judge in fixing a non-parole period of 16 months which must have been informed by the need to protect the community from the risk that the appellant’s prospects of rehabilitation are poor and the chance that once released he might relapse into the commission of similar crimes. Accordingly, the length of the non-parole period reflected the need for specific and general deterrence and protection of the public. We do not accept this submission. It is relevant that, given the appellant’s history of drug use, the nature and circumstances of the breach which resulted in the cancellation of his parole is the very kind of set-back that could be expected because of his drug addiction. In this context, it is significant that the appellant was seeking treatment for his drug addiction, the breach did not involve a descent into further criminal conduct, and he did not commit any other breach of his parole after his release on 29 September 2014.